Public Bill Committee

[Mr. Joe Benton in the Chair]

Clause 2

Involvement in serious crime: England and Wales orders

Amendment proposed [this day]: No. 57, in clause 2, page 2, line 23, leave out paragraphs (b) and (c).—[Mr. Hogg.]

Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we are discussing the following amendments:No. 58, in clause 2, page 2, line 23, after ‘has’, insert ‘knowingly and intentionally’.
No. 3, in clause 2, page 2, line 25, after ‘has’, insert
‘conducted himself in a way that was unreasonable in the circumstances and, by doing so, has’.
No. 60, in clause 2, page 2, line 25, after ‘has’, insert ‘knowingly and intentionally’.
No. 66, in clause 2, page 2, line 45, at end insert ‘knowingly and intentionally’.
No. 79, in clause 2, page 2, line 38, after ‘the’, insert ‘knowing and intentional’.
No. 72, in clause 3, page 3, line 31, at end insert ‘knowingly and intentionally’.
No. 81, in clause 3, page 4, line 7, at end insert ‘knowingly and intentionally’.

Vernon Coaker: Good afternoon to you, Mr. Benton, and to all members of the Committee. Before I continue what I was saying before lunch, I wish to take the opportunity to welcome you formally to the Chair. We had an interesting and good debate this morning and I am sure that it will continue. We very much look forward to serving under your chairmanship this afternoon and during forthcoming sittings of the Committee.
I was replying to the debate on amendment No. 57. As I was saying to the hon. Member for Taunton, the key point to when a person should be liable for an order is that their actions must be unreasonable in the circumstances. It is not enough for the person simply to be told by law enforcement that their actions are facilitating serious crime.
The right hon. and learned Member for Sleaford and North Hykeham has said a number of times that the orders are based on strict liability and that there is no mental element in relation to facilitation. As I was  trying to make clear before lunch, including the mental element suggests that the orders are criminal in nature. Concepts such as intention or knowledge are inappropriate in that context. In the case of McCann, the House of Lords decided that antisocial behaviour orders are civil orders. One of the reasons for that decision was that the court does not consider whether the subject had a particular mental state.
As I have said several times, the orders are not punitive. We are not concerned with whether a person intended harm, but with a person’s actions and their outcome. Including a mental element will make it more difficult to obtain an order even when it may be reasonable to impose an order on the basis of behaviour when it would not be possible to prove intention or knowledge.
I was giving the hon. Member for Taunton a number of examples and was finishing with the example of a person who owns a string of lodging-houses that had been found on several occasions to contain individuals who have been trafficked or smuggled, with the accommodation paid for by others. The first option for law enforcement might be to approach the owner and make him aware of the problem. However, if it continued to happen, law enforcement might decide to apply for an order. Although the matter would depend on the circumstances, in such a case there would be a doubt about whether law enforcement could prove that the owner had the requisite intention. The owner might argue successfully that he had no knowledge that the people were being trafficked or smuggled or that his purpose was to make money and run his business rather than to facilitate people-trafficking.

Kali Mountford: I was concerned this morning that some examples were being given to make it look as though the orders were trivial in some way. I was thinking about some cases of paedophilia in my constituency. Let us consider a taxi driver who routinely took children to a particular address. If the taxi driver owner was told that children were being taken there, but then did not respond, what proceedings should follow his being told that the children were being taken routinely to a particular address for ill use and abuse?

Vernon Coaker: I thank my hon. Friend for intervention. She has highlighted another example of when serious crime prevention orders could be used to prevent serious crime when someone is facilitating it. They might not know that the taxis were being used for that, but when told that they were, said, “My intention was not that they should be used for crime; I am just running my business.” That was the sort of example that I have cited in connection with lodging-houses.
As for the lodging-houses, an order that required the owner to provide law enforcement for a limited period with a list of those staying in the houses or where people’s stay was paid for by a third party would be a reasonable and proportionate response to prevent those houses from being used as stepping-stones on the way to people-trafficking.

Margaret Moran: Following my hon. Friend’s remarks and having just come back from a visit to the Child Exploitation and Online Protection Centre, would the Minister enlighten us as to whether such an order would be helpful in tackling child abuse online? For example, if a social networking site were warned that child abuse was happening on that site, could the orders be used to prevent further abuse of children?

Vernon Coaker: Certainly the orders could be considered in a whole range of different circumstances. If my hon. Friend looks—as I know she will have done—at the schedules, she will see that there are a number of offences related to such issues. However, the whole point of the order—as both my hon. Friends said—is to prevent serious crime from taking place. That is the whole purpose of the order. One of the ways of preventing serious crime from taking place is to stop the facilitation of that crime.

Jeremy Browne: Just because Labour Members have decided to contribute in a way that they did not to the conversation earlier—
Ian Lucas (Wrexham) (Lab) rose—

Joe Benton: Order. Someone making an intervention cannot give way.

Jeremy Browne: The Labour Members are contributing in greater numbers than they did this morning. I want to clarify two brief points. First, in the example given a moment ago, surely the best course of action is to prosecute the suspected paedophile and bring the case to court, rather than to use the examples contained in the Bill.
Secondly, I am still unclear as to what constitutes a warning. If I am a taxi driver and a large amount of my business is taking children to play groups and other such activities, a malicious individual wishing to do my business harm might say that they think that some of the children in some circumstances might be being taken to places that those children ought not to go to. Is that sufficient warning? Does it have to be a police officer? How many times does it have to be? Or can one person try and ruin my business in that way?

Vernon Coaker: I have said on a number of occasions that the behaviour of a person who is the subject of an applicant authority trying to take out a serious crime prevention order has to be demonstrated to be unreasonable by the applicant authority—that is the whole point of a serious crime prevention order.The person’s defence, using the standard proof of the balance of probability, is to demonstrate to the court that their behaviour was reasonable. I put to the hon. Gentleman that surely, if the warning given by law enforcement was not sufficient or was not regarded as appropriate or the proper way of doing things, then the defence of the person against whom the serious crime prevention order was being sought would demonstrate to the court that their behaviour had been reasonable and they had not been properly warned about what was taking place.
Although the hon. Gentleman and I may differ, I have said on a number of occasions that the respondent has the opportunity to demonstrate in the High Court that their behaviour was reasonable. Also, where prosecution could take place, we would expect prosecution, but the orders are about preventing crime in the future and about trying to stop harm wherever it may occur. My hon. Friends gave us two other examples.
One other thing is particularly important. Hon. Members should note—there was some confusion in the other place—that when talking about facilitation and about “mental state” and a “mental element”, we are not talking about those who may be suffering from a mental illness or otherwise mentally vulnerable. There is nothing in the Bill on the issue because, in the High Court and a Crown court, an order must be proportionate. It is hard to see how it could be proportionate to give an order to a person who is so mentally ill that they cannot manage their own affairs. In addition, with proceedings before a Crown court, a person would have recently stood trial, so it can be assumed that they have the necessary mental capacity to be given a serious crime prevention order.

Jeremy Wright: May I ask the Minister to consider one possibility? He has explained that before someone is subjected to one of these orders they would have the opportunity to demonstrate that what they had done was reasonable. The burden of proof would be on the respondent to do that. If someone was acting foolishly, they may have difficulty demonstrating to a court that they had behaved reasonably. Presumably, it would not be the Government’s intention to catch within the ambit of these orders someone whose behaviour was simply foolishness.

Vernon Coaker: The only people we are trying to catch with the order are those who, for whatever reason, are acting in a way that facilitates serious crime. I think that it would be for the courts to judge whether someone’s behaviour had been reasonable or not. Other members of the Committee will know better than I how the courts work. My understanding is that foolishness on its own would not necessarily be sufficient to impose on someone a serious crime prevention order. The key point is to demonstrate the reasonableness of their behaviour.
I have spoken for a considerable time on the matter. I hope that my comments have been helpful to Committee. I would, therefore, ask the right hon. and learned Gentleman to withdraw his amendments.

Douglas Hogg: I may withdraw my amendment, but I want to make a suggestion. I need your guidance, Mr. Benton. I said at the first sitting today that I was not a team player, but I like to be collegiate where I can—which is pretty rarely.

Crispin Blunt: You are on dangerous territory.

Douglas Hogg: I am on dangerous territory, as the Whip says.

Crispin Blunt: You are from Lincolnshire.

Douglas Hogg: I heard that. I noticed that there was quite a lot of support for amendment No. 58 on the Opposition Benches and perhaps elsewhere. However, I think that there was less support for the lead amendment, No. 57. I would have a preference to move amendment No. 58 and not No. 57. I need your guidance, Mr. Benton, as to whether I can do that. If you could advise me, I would be extremely grateful.

Joe Benton: My advice to the right hon. and learned Gentleman is that he can withdraw amendment No. 57. It just so happens that the next item on the Order Paper is amendment No. 58. If it is his wish to press them, he can do so.

Douglas Hogg: I am very grateful, Mr. Benton. That will be my intention. I am not going to detain the Committee at any great length, but I want to reinforce the reason why we should support the concept in amendment No. 58. I understand why the Minister has concentrated on clause 5(2). He has emphasised that in certain circumstances it is for the respondent to come forward and establish the reasonableness of his actions. He will also know that subsection (2)(b) instructs the court to ignore his intentions and every other mental element. In other words, the court is obliged not to consider questions of knowledge and intent. The compilation of those two clauses makes it absolutely plain that we are dealing with strict liability. That means that a person who, as a matter of fact regardless of intent or knowledge, carries out an act that amounts to a facilitation is a person to whom the order-making powers can apply. I say “can apply” and not “will apply” because ultimately that depends on the discretion of the court. I take the point made by the hon. Member for Colne Valley with regard to the taxi and people traffickers. A taxi driver who, albeit unknowingly, goes to premises which are used for people trafficking is undoubtedly facilitating a crime.
Let me give another example. A taxi driver who, albeit unknowingly, takes customers to a brothel is undoubtedly facilitating the running of a brothel. As a matter of fact, the courts may not be asked to impose an order, but, on a strict reading of the Bill, it is self-evident that if an application is made, the courts could impose an order. I believe that that is profoundly wrong. I believe that the taxi driver in both cases should only be subject to the Bill or the order-making powers if he was knowingly and intentionally encouraging either the brothel or the traffic in people. That is not what it says in the Bill, which is why I wish to see incorporated the language in amendment No. 58, namely the concepts of knowledge and intention. That way, we safeguard people like the taxi driver who otherwise are prima facie caught by the facilitation. For those reasons I wish to withdraw amendmentNo. 57 and move amendment No. 58.

Jeremy Browne: Mr. Benton, I would like to press amendment No. 3 to a vote as well. I do not know the procedure.

Joe Benton: It is quite in order to press that amendment when we come to it. I will call it formally.

Douglas Hogg: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 58, in clause 2, page 2, line 23, after ‘has’, insert ‘knowingly and intentionally’.—[Mr. Hogg.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment proposed: No. 3, in clause 2, page 2,line 25, after ‘has’, insert
‘conducted himself in a way that was unreasonable in the circumstances and, by doing so, has’.—[Mr. Browne.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Jeremy Browne: I beg to move amendment No. 4, in clause 2, page 2, line 33, leave out paragraph (b).

Joe Benton: With this it will be convenient to discuss amendment
No. 8, in clause 2, page 3, line 19, leave out subparagraph (ii).

Jeremy Browne: This is the first opportunity I have had to speak, as when I have been speaking previously I have been intervening, seeking your guidance or welcoming you to the Chair of this Committee, Mr. Benton. I will speak briefly on the intention behind these two amendments.
Amendment No. 4 seeks to remove the court’s ability to define what a serious crime is. The legislation states that a serious offence in England and Wales
“is one which, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified.”
So although serious crimes are defined in schedule 1 of the legislation, the list is not exhaustive and may be amended by the Secretary of State by order. Amendment No. 4 seeks to remove that discretion from the court.
Amendment No. 8 is one that we considered withdrawing, subject to reassurances from the Minister. The essential point we are trying to get to is whether a serious crime prevention order could be issued for a crime committed abroad, which is not an offence in the United Kingdom. The examples which are often cited in this regard are, for example, holocaust denial in some other countries in Europe which is not an offence here. I understand that it is an offence in France not to go to the assistance of a person in danger, but that is not so in the United Kingdom. Because serious crime prevention orders can be applied internationally, we are keen to ensure that they are not issued for offences that may not exist in the UK but do exist in other member states of the European Union or elsewhere. If the Minister were to reassure us, we would be grateful.

Douglas Hogg: I support the amendment. It is rather important. If one looks at the language of subsection (2), one sees at once that any conduct that the court thinks sufficiently serious can fall within the category of “a serious offence”, and that it shall be so treated. In other words, it does not have to be criminal conduct. It is sufficient if the court thinks it serious. I recognise that we are not dealing with a crime—a point that has been made by the Minister on many occasions. In theory, we are not dealing with punitive measures. However, the Committee knows full well that the consequences of the order are severe and that they are indistinguishable in many respects from a penalty for a criminal offence.
One should ask this question. How would the Committee feel if one were to introduce a criminal justice Bill one of the terms of which, notwithstanding the fact that the matters set out in the indictment did not constitute a criminal offence, was that a trial judge could, if he thought the circumstances sufficiently grave, treat an offence as criminal? To say that that was acceptable would be so absurd that even Labour Members recognised the folly of it. Actually, it is little different from what is proposed in the Bill. We are enabling judges of the High Court or the Crown court to say, “I so dislike this activity that I am going to treat it as a ‘serious crime’ in respect of which a serious crime prevention order will be made.”
That raises another interesting question: how could one appeal such a sentence? If it is entirely within the discretion of the trial judge, and if he is not given any guidance or criteria as to whether such matters should fall within the provisions of subsection (2), the decision is virtually—perhaps entirely—unappealable.
The hon. Member for Taunton is entirely right; it is a deeply objectionable provision. If he presses the amendment to a Division—I hope that he does—he will have my support.

Nick Herbert: I too support the amendment and everything said by the hon. Member for Taunton and my right hon. and learned Friend. I too believe that subsection (2) is objectionable. It seems to be slightly tautologous. It says that a serious offence is
“one which...the court considers to be sufficiently serious”.
No elaboration is given, so the definition is as broad as the court would wish it to be.
In addition to the objections given by my right hon. and learned Friend, the provision contravenes the principle of legal certainty. We heard in debates on previous amendments that no element of mens rea is required for issuing serious crime prevention orders; but setting that aside, how is a person to know that his conduct might come within the ambit of a serious crime prevention order if no definition is given of serious crimes? Despite the fact that we have a list of offences—the list given in schedule 1 is obviously non-exhaustive, as the Minister seeks the power to add to it—how can anyone know whether his conduct is “serious” if the court can determine that any conduct is serious if, in its own judgment, it is to be treated so? That undermines completely the principle of legal certainty and seriously widens the potential scope of the legislation. The Minister needs to explain why it is necessary to have a specific list of offences as well as the catch-all provision. If he cannot explain why the catch-all provision is necessary, it is indefensible.

Vernon Coaker: May I provide some clarification on the point raised by the hon. Member for Taunton and then come to the more general discussion on the amendments? If he looks at clause 2(5) he will find the answer to his question about to whom a serious crime prevention order could be applied. The answer is that if someone commits an offence overseas, a serious crime prevention order can be applied, providing it is an offence in this country as well. For example, if somebody committed an offence of drug trafficking in France, where it is obviously illegal, as it is here, it could form the basis of a serious crime prevention order. The offence would have to be illegal in both countries for such an order to be used. I hope that that clarifies the point.
As we have discussed already, we have provided a schedule of offences to show the large majority of offences in relation to which the use of such orders would be appropriate. Within the framework of the schedule, we have also provided a discretion forthe High Court to treat an offence as serious if inthe circumstances of the case before it, which we cannot know or foresee, it considers the offence to be serious enough to be treated as if it were specified in schedule 1. This might be a point of disagreement between us, but we think that it is important that the Court has that discretion. We cannot list every type of offence. It might be appropriate to leave that to the consideration of the High Court, which might wish to consider other serious crimes. We think that that discretion is important, which is why we have put it in the Bill.

Nick Herbert: The more the Minister defends the provision, the more it strikes me as objectionable. He says that we cannot know or foresee what he describes  as serious crimes that might be caught under the provision. If the Government cannot know or foresee such serious potential offences, which could fall under the ambit of what becomes a criminal matter or certainly might lead to serious restrictions on people’s freedom to go about their business, how can he reasonably expect individuals to know or foresee that something may become subject to one of those orders? What does that do for the principle of certainty and what kind of legislative basis is it when this House provides a provision that could catch any conduct subject only to whether the Court judges it to be serious?

Vernon Coaker: I remind the hon. Gentleman that, of course, the High Court is a public authority for the purposes of the Human Rights Act 1998 and that any judgment that it makes must be proportionate. That is a discussion that was had with the right hon. and learned Member for Sleaford and North Hykeham earlier. As I said, we want to ensure that the High Court has the necessary discretion so that is not fettered by looking only at a schedule. Serious crimes and other matters might come before it that are not in the schedule, but which the Court believes to be appropriate for a serious crime prevention order. That is why we have provided the discretionary power for the Court.

Douglas Hogg: I hope that the Minister will deal with the appeal point, because I find it very difficult to envisage the way in which a court to which an appeal is made will determine whether conduct falls within this open-ended subsection.

Vernon Coaker: The right hon. and learned Gentleman knows the court system better than me, but he also knows that if an offence is treated as serious, and people regard it as unreasonable, the decision can be appealed against, and it can be appealed against to the Court of Appeal. There is an appeal process in the legal system, and if the High Court makes an unreasonable decision, a decision that people consider inappropriate, disproportionate or inconsistent with the Human Rights Act, or there is an error of law, it can of course be appealed against to the Court of Appeal. There is an appeals process.

Douglas Hogg: I am grateful to the Minister for what he has just said, but he will remember that he rejected my suggested criterion of being just, necessary and proportionate, which would have enabled an appellate court to consider the matter properly. The only word is now “appropriate”, which will be jolly difficult for an appellate court to consider.

Vernon Coaker: The right hon. and learned Gentleman made the point that there was no appeal.

Douglas Hogg: No, I did not say that.

Vernon Coaker: The impression that I got was—

Douglas Hogg: Will the Minister give way?

Vernon Coaker: Of course.

Douglas Hogg: I did not say that, or if I did, I did not mean to say it. I said that an appellate court could not consider an appeal, not that there would not be an appeal. I know perfectly well that the Bill makes provision for an appeal procedure, but when thereis an undefined set of circumstances, it is not easyand probably not possible for an appellate court toreview it.

Vernon Coaker: The right hon. and learned Gentleman has clarified for the Committee the importance of the fact that there is an appeal process, which is available to somebody who is made the subject of a serious crime prevention order in the High Court and believes that it is disproportionate, that there has been an error of law or that an injustice has taken place.
It is important that we do not fetter the discretion of the courts to adapt to the constant changes that surround us, consider the context of events and make a fully informed and reasoned decision about whether it would be appropriate for the offence to attract an order. I shall provide an example of why the discretion is necessary. It is inappropriate to include in the schedule offences against the person such as assault or murder, because they are not suitable for attracting an order in all circumstances. For example, if one person assaulted another in a simple fight in a pub, I am sure that we would all agree that the order would be inappropriate. However, if someone has routinely used violence to intimidate and maintain a reign of terror in an area, and if there is evidence that an order would prevent such crimes from happening again, that person might be an appropriate candidate for an order after serving their sentence.
The circumstances in which the offences are committed make an order appropriate—or not. The person best placed to judge those circumstances is a judge sitting in the High Court, or as the case may be, a judge sitting in the Crown court, with all the facts in front of him. That is why I do not propose to agree to fetter judges’ discretion to deal with the cases before them in the most appropriate way. As a result, I ask the Committee to resist the amendment.

Jeremy Browne: I should like to press the amendment to a Division.

Question put, That the amendment be made.—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Douglas Hogg: I shall be brief because I have made my substantive arguments by way of amendment. I object to the provisions of the clause and disapprove of it for three reasons. First, as I have explained to the Committee, I am strongly opposed to the way in which it defines “a serious offence”. It is wrong in principle to do that by way of categorisation. If we have to do it at all, we should do it by reference to the sentence that particular conduct attracts; hence the amendments that I tabled suggesting that the length of a sentence be the indication of an offence’s gravity.
Secondly, I have very real inhibitions about including in the scope of “a serious offence” the act of facilitation. Facilitation per se is not necessarily a criminal offence. Although the orders are not being created for criminal offences, the consequences of an order will be almost indistinguishable from a penalty imposed. I am loth to agree to that when the act complained of is not a criminal offence. Thirdly, if we are driven to the position whereby facilitation is to be included as a triggering act, it is quite plain that that should be done only if the facilitation is knowing and intentional. That addresses the point made by the hon. Member for Colne Valley.
Those are the three principal reasons why I am against the clause, and I shall vote against it.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3

Involvement in serious crime: Northern Ireland orders

Question proposed, That the clause stand part of the Bill.

Douglas Hogg: I shall not speak at any length, because the provisions for Northern Ireland are the same as those in clause 2. It is none the less regrettable that there is not a Member from the Province on the Committee. We are dealing with matters of importance to the Province, and I am rather surprised that it does not have representation.
If I might just briefly adopt the mantle of an Ulsterman—I am an Ulsterman by background, though some generations ago—I respectfully say to the Committee that our arguments on clauses 1 and 2 have equal application to clause 3. I am sorry that there is not an Ulsterman here to defend the interests of the Province. I shall not press the matter to a Division, because we have already discussed clauses 1 and 2 and there is no point in revisiting them.

Clause 3 ordered to stand part of the Bill.

Schedule 1

Serious offences

Vernon Coaker: I beg to move amendment No. 24, in schedule 1, page 48, line 25, at end insert—

‘Armed robbery etc.
4A (1) An offence under section 8(1) of the Theft Act 1968 (c. 60) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon.
(2) An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon.
(3) In this paragraph—
“firearm” has the meaning given by section 57(1) of the Firearms Act 1968 (c. 27);
“imitation firearm” has the meaning given by section 57(4) of that Act;
“offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies.’.

Joe Benton: With this it will be convenient to discuss the following: Amendment No. 23, in schedule 1, page 48, line 25, at end insert—

‘Robbery using an offensive weapon or firearm
4A An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a weapon specified by the Secretary of State under section 141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968(c. 27)).’.
Government amendment No. 29.

Vernon Coaker: I hope that I can help the hon. Member for Arundel and South Downs and his colleagues with the amendment. I do not intend to delay the Committee for long, because hon. Members might wish to make other points later in our discussion. We have discussed the reasons behind our definition of serious crime in schedule 1, as well as those for giving the court discretion in respect of that definition. In dealing with this group of amendments, we will consider the contents of the schedule.
Some concern has been expressed about why we have included some offences and left out others that it might have seemed appropriate to include. To the right hon. and learned Member for Sleaford and—

Douglas Hogg: Sleaford and North Hykeham.

Vernon Coaker: Do you know, I am absolutely terrified of getting the name of the right hon. and learned Gentleman’s constituency wrong? I am going to write it in big letters. In response to what he said, I should like to say that I believe that prostitution and keeping a brothel are serious offences. It is right that they should be listed in the schedule and that, in relation to such an offence, the High Court should be able to consider whether a serious crime prevention order is appropriate in the circumstances.
The schedule is based to a large extent on schedule 2 to the Proceeds of Crime Act 2002, which sets out “lifestyle offences” in which serious criminals regularly engage. In developing the list for the purposes of this legislation, we also thought about other serious offences against which it might be suitable to use the orders. Two criticisms of the orders have been made. The first questioned why we did not include offences against a person, which I think we dealt with in a previous discussion. The second criticism related to environmental offences. The hon. Member for Taunton, among others, raised that point. Those offences were included on the recommendation of the Association of Chief Police Officers lead for wildlife and environmental crime. Environmental crime, such as the poaching of fish or dumping of waste, can cause both ecological and economic harm to local communities. Ecological harm, in particular, is the perfect example in which prevention is most assuredly better than a cure, which makes the orders a potentially valuable tool. The inclusion of environmental offences is extremely important.
I recognise that it easy to make a debating point of sorts by saying that a serious crime prevention order will be made against anybody who takes one fish from the lord of the manor’s river or trout farm. In response, I say that we are talking about serious crime. As we all know—I said it this morning and Lord Dear said it—chucking an explosive into a pond is more serious than taking the odd fish, although that is illegal as well. 
The Government amendments relate to two areas where we think it is important for the orders to be an option. In response to a helpful suggestion from a colleague of the hon. Member for Arundel and South Downs in another place, Baroness Anelay, we agreed that we could consider adding robbery to the schedule, where it is committed with a firearm or offensive weapon. There is no specific offence of armed robbery, but we believe that parliamentary counsel’s drafting of Government amendments Nos. 24 and 29 meets the commitment that we made in the other place. I hope that those Government amendments meet the concerns of Baroness Anelay, and that the hon. Gentleman will not press amendment No. 23.

Nick Herbert: I am grateful for the Minister’s explanation and for his amendment. My noble Friend Baroness Anelay in another place tabled the original amendment to bring armed robbery within the scope of the offences listed in the Bill as a probing amendment. It was designed, as the Minister picked up on, to try to tease out why certain offences that do not seem to be so serious, such as environmental offences, including salmon fishing, have been included in the schedule, yet offences involving significant violence, which the public would consider to be part of the problem of serious crime, have not been included. That was her purpose in tabling the amendment in relation to armed robbery.
 My noble Friend then received significant support from the industry, which was keen, despite its reservations about the operation of serious crime prevention orders, to which I referred this morning, to have a specific offence included that would cover armed robbery. The British Bankers Association pointed out that last year its members suffered 119 armed robberies, incurring significant losses and resulting in injuries to staff and customers. There is growing awareness in and outside this place of the problem of armed robbery and the particular pressure that it puts on the industry and on staff who are victims of attacks.
The Government agreed to look at the amendment to see whether it could be tidied up, and have now tabled their own. I do not wish to sound churlish, but while I am grateful to them for accepting my noble Friend’s proposal, I have some reservations about including another offence in the schedule, given that the Government have made no concessions in relation to the operation of the orders.

Douglas Hogg: The way to resolve the matter is to vote against schedule 1 stand part.

Nick Herbert: I am grateful to my right hon. and learned Friend, but that strikes me as going dangerously down the line of John Kerry and his explanation of why he votes for things before he votes against them. It is not surprising that this puts us in something of a dilemma because, on one hand, there is a harm that we want dealt with, which is why we raised the problem initially. On the other hand, we have serious concerns, which we set out this morning, about the operation of the orders, and the Government have not felt able to make any concessions. Nevertheless, if there is to be a schedule, it would be sensible to include the specific harm in it and within the definition of serious crimes, rather than leaving it to a court to decide whether it is a serious crime under the provisions that we unsuccessfully objected to a few moments ago.
I know that the Minister was trying to be helpful in tabling the amendment, and I am grateful for that. I know that the industry will be grateful. It has found itself in precisely the same position as us—it expressed concern about the operation of serious crime prevention orders and argued strongly that there should be prosecution when possible. I referred this morning to its concerns about the orders, but it wants a widening of the offences if the orders must go forward. On that basis, I would be happy not to press my amendment.

Vernon Coaker: I assure the hon. Gentleman that he did not sound churlish, and I understand the point that he is making. While not conceding on the principle of the Bill, I accept his point about trying to improve it, and I hope that I have tried to take account of points that are made and not only during our discussions of this Bill. That applies particularly when there is a consensus that a Bill can be improved. To reassure the hon. Gentleman, I should say that I did not find his remarks churlish at all. I am pleased that we have been able to add something to the Bill which his noble Friend wanted to be added.

Amendment agreed to.

Vernon Coaker: I beg to move amendment No. 25, in schedule 1, page 48, line 27, leave out ‘either’ and insert ‘any’.

Joe Benton: With this it will be convenient to discuss Government amendments Nos. 26 to 28 and Government amendments Nos. 30 to 33.

Vernon Coaker: We have already discussed the reasons behind and structure for the schedule. The Government amendments relate to two areas in which we think the orders should be available. Amendments Nos. 25, 26, 30 and 31 add the offence of acquisition, use and possession of criminal property under section 329 of the Proceeds of Crime Act 2002. That offence is considered to be one committed by organised criminals. It can attract a financial reporting order under the Serious Organised Crime and Police Act 2005. Amendments Nos. 27 and 32 add the offence of false accounting. Finally, we tabled amendmentsNos. 28 and 33 because of the growing evidence that serious criminals are targeting the tax system in an increasingly systematic and large-scale manner. There is a direct impact from serious crime on the Exchequer in respect of indirect taxes and excise duties; several billion pounds are lost to the Exchequer through VAT and excise fraud. There is also evidence that criminals are attacking the tax credit system and evidence of systematic attacks by organised criminal gangs. The measures can provide a useful means of preventing the harm caused by such crimes.

Daniel Rogerson: I welcome you to the Chair, Mr. Benton. I share the delight of other Members at serving under your chairmanship, and thank you for calling me to speak.
I seek reassurance from the Minister about tax credits, the issue that he has just raised. All hon. Members will have had huge postbags of letters from constituents who have had issues with the complexity of the tax credit system and felt that they have been wrongly accused of trying to defraud—through overpayment, or whatever. Many will be concerned at the failings of the system’s complexity.
The provisions of this Bill may be applied to someone who has been accused of or investigated for some offence; is it the Government’s intention that those provisions should be confined to people who were offending in a systematic way against that system? There are those who have had a one-off individual issue with the system and may have been found, officially, to have committed fraud. That finding, however, may well have resulted from some inaccuracy in the form filling.

Vernon Coaker: The hon. Gentleman makes an important point; clearly, we are not necessarily seeking to attack particular individuals. The issue is about serious crime and systematic fraud. I hope that I have reassured the hon. Gentleman. We are not after those who have inadvertently misclaimed something; we want to prevent crime in the future and tackle systematic fraud.

Amendment agreed to.

Amendments made: No. 26, in schedule 1, page 48, line 31, at end insert—
‘(c) section 329 (acquisition, use and possession of criminal property).’.
No. 27, in schedule 1, page 48, line 33, at beginning insert—
‘() An offence under section 17 of the Theft Act 1968 (c. 60) (false accounting).’.
No. 28, in schedule 1, page 48, line 42, at end insert—

‘Offences in relation to public revenue
6A (1) An offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (fraudulent evasion of duty etc.) so far as not falling within paragraph 1(2)(c) or 3(1)(b) above.
(2) An offence under section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent evasion of VAT etc.).
(3) An offence under section 144 of the Finance Act 2000 (c. 17) (fraudulent evasion of income tax).
(4) An offence under section 35 of the Tax Credits Act 2002 (c. 21) (tax credit fraud).
(5) An offence at common law of cheating in relation to the public revenue.’.
No. 29, in schedule 1, page 52, line 2, at end insert—

‘Armed robbery etc.
18A (1) An offence under section 8(1) of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.)) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon.
(2) An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon.
(3) In this paragraph—
“firearm” and “imitation firearm” have the meaning given by Article 2(2) of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I.3));
“offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies.’.
No. 30, in schedule 1, page 52, line 4, leave out ‘either’ and insert ‘any’.
No. 31, in schedule 1, page 52, line 8, at end insert—
‘(c) section 329 (acquisition, use and possession of criminal property).’.
No. 32, in schedule 1, page 52, line 10, at beginning insert—
‘() An offence under section 17 of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.)) (false accounting).’.
No. 33, in schedule 1, page 52, line 19, at end insert—

‘Offences in relation to public revenue
20A (1) An offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (fraudulent evasion of duty etc.) so far as not falling within paragraph 15(2)(c) or 17(1)(b) above.
(2) An offence under section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent evasion of VAT etc.).
(3) An offence under section 144 of the Finance Act 2000 (c. 17) (fraudulent evasion of income tax).
(4) An offence under section 35 of the Tax Credits Act 2002 (c. 21) (tax credit fraud).
(5) An offence at common law of cheating in relation to the public revenue.’.—[Mr. Coaker.]

Question proposed, That this schedule, as amended, be the First schedule to the Bill.

Joe Benton: With this we may take amendment No. 95, in clause 5, page 5, line 20, leave outsubsection (4).

Douglas Hogg: The object of amendment No. 95, which stands in my name, is to remove subsection (4) of clause 5, which gives the Secretary of State, by order, the power to amend schedule 1. By that power he can either add to or delete from the list of offences that are categorised in the schedule.
I am very much against that because the powers are exercised by affirmative resolution—

Joe Benton: Order. I am sorry to interrupt the right hon. and learned Gentleman, but the noise level is getting rather high; there are too many social conversations going on. I ask hon. Members to speak sotto voce.

Douglas Hogg: As you know, Mr. Benton, the affirmative resolution procedure is not amendable. Therefore, we are enabling the Secretary of State to add to these offences by way of an unamendable order, which is a very unattractive proposition. For that reason, I hope that the Committee will rally behind amendmentNo. 95.
The more general issue is whether schedule 1 should stand part of the Bill. I shall be brief, as I have rehearsed my arguments many times. The Committee by now will understand that I take a strong objection to this part of the Bill. I am very much against the definition of a serious offence—I use the language of the Bill—by reference to categorisation. I have expressed my reasons already; it is wrong in principle and if we are to have serious crime prevention orders they should be made by reference to the penalties imposed by the courts rather than by categorisation.
My objection is to the whole architecture of the Bill as set out in schedule 1, which is reinforced by the fact that in respect of facilitation, the facilitator may be committing no offences known to the law but will be caught if he or she is facilitating an act that is specified in the schedule, which may be pretty trivial.
I do not like procedures being carried out, therefore my argument against schedule 1 relates to the whole structure of the Bill. I would like to think that in a spirit of collegiate support my Front Bench will take the same view, but if they do not I shall, in any event, vote against them.

Nick Herbert: I rise, in the spirit of collegiate support, to support my right hon. and learned Friend in relation to amendment No. 95, in which he seeks to remove the provision in clause 5(4) that enables the Secretary of State by order to amend schedule 1, either by taking offences away or, more seriously, by adding them.
I signalled on Second Reading that the official Opposition were unhappy with the provision. It seems wrong in principle, even if the statutory instrumentis subject to the affirmative procedure, that the Government should take the power to add to the list of offences that can be used to make serious crime prevention orders. We have expressed concerns about that.
If it is necessary to add offences to the legislation in the future, it should be done by primary legislation. After all, plenty of Home Office Bills are likely to come forward as vehicles for such amendments. Judging by the number of Home Office Bills we have had so far, there will be no shortage of legislative opportunities. The nature and scope of the orders mean that, for consistency’s sake, given our concerns about the operation of the powers, we cannot support granting an open-ended power to the Government of the day to add to the list of offences.
As to the wider schedule, I am inclined to agree with my right hon. and learned Friend. After all, we objected to clauses 1 and 2 in the first place because the Government have failed to meet our concerns about the operation of the orders.
An issue for us is that if the schedule of specific offences were to disappear, it would leave in the Bill only the power for courts to determine whether offences were sufficiently serious. Nevertheless, I am content to oppose the schedule on the basis that we oppose that power as well. Therefore, for consistency’s sake, in spite of the addition of the offence of armed robbery that was proposed in the other place, we shall oppose the schedule.

Vernon Coaker: That is why I prefaced my remarks on the previous group of amendments by saying that I knew that the hon. Gentleman was not being churlish. I slightly suspected that he would ask his colleagues to vote against the schedule even though we had included armed robbery. I understand that he is not being churlish, even though we agreed to the earlier amendment.
As the hon. Gentleman said, amendment No. 95 would remove the order-making power of the Secretary of State to add to the list in the schedule. I have already outlined the reasons why the schedule is important, not least in providing guidance for the courts in exercising their discretion. The order-making power is necessary to ensure that the list is kept current, and to provide the most effective tool for the courts. Even five to 10 years ago, we probably could not have anticipated the impact that the use of computers would have in enabling serious targeting of the Exchequer, which occasioned the amendments in the last group. We need to be able to adapt to emerging trends in crime and the rapid diversification of criminal activity that I alluded to earlier. That is why the order-making power is necessary.

Crispin Blunt: Just for my elucidation, could the Minister explain the process that his Department went through in deciding the make-up of the schedule?

Vernon Coaker: As the hon. Gentleman knows, we went to consultation. We spoke to stakeholders and the police, which is one of the reasons why we included environmental crime in schedule 1. ACPO told us that it should be included. We spoke to many different people. The amendments that we just accepted indicate that we even took advice from Conservative Lords as to what should be in the schedule. A broad church of people have been involved in deciding what should be included. I thank the hon. Gentleman for giving me the opportunity to make that interesting point.
We have already discussed the context for the schedule in relation to clause 2(2), which sets out what constitutes a serious offence. This includes the necessity of providing the courts with the discretion to treat an offence as if it were specified in schedule 1. The schedule therefore provides not only a list of offences that will always be capable of attracting an order, but guidance to the courts on the types of offence that could form the basis of an order.
The schedule is based on schedule 2 to the Proceeds of Crime Act 2002. That set out what constituted lifestyle offences for the purposes of that legislation—offences that are committed by serious criminals to fund and maintain luxurious lifestyles at the expense of their victims. All these offences should be capable of attracting an order. However, the purposes of the Bill go further than those of the 2002 Act, so we thought it necessary to see whether it was appropriate, through this legislation, to prevent the harm caused by serious criminals in relation to other offences. As a result, we added certain categories of offence to this schedule. Those include the environmental offences that I mentioned earlier, along with offences relating to fraud, and corruption and bribery.

Jeremy Browne: On the point about the Home Secretary being able to add extra categories, how would the Minister answer a constituent of mine who approached me to express concern that at some future point, a less benign and enlightened Home Secretary than the one who exists until this time tomorrow may seek to impose, through this provision, various draconian measures that would pose a great threat to the liberties of the citizens of this country? Indeed, they would apply to people who had committed no criminal offence whatever. Is that not, in the eyes of many people in this country, the slippery slope towards imposing by order a set of measures that would potentially severely curtail our liberties?

Vernon Coaker: I would say to the hon. Gentleman’s constituent what I would say to my own. Whatever the Home Secretary decides should be able to be included in the schedule, it is not the Home Secretary who will decide whether someone should be subject to a serious crime prevention order. A High Court judge will take that decision. I would also say to the hon. Gentleman’s constituent, as I have said to a number of hon. Gentlemen in Committee and to my hon. Friends, that the High Court is, for the purposes of the Human Rights Act 1998, a public authority. Therefore, the High Court is bound to act in a way that is consistent with human rights legislation. Should a judge in that Court err, as I said to the right hon. and learned Member for Sleaford and North Hykeham earlier, there is an appeal process.
It is an important part of our democracy—an important part of our constitution—that we have a Parliament that makes the law. We have a part of our democracy that sets down what we believe to be right and proper, but it is a matter for the courts to protect certain freedoms of individuals, to protect the civil liberties of individuals and to apply the law. That would be a perfectly reasonable response to reassure the constituent of the hon. Member for Taunton.

Kali Mountford: What would my hon. Friend say to a constituent of mine who said to me, “What are the Government doing, allowing criminals to develop their crime in the face of new technology and not being prepared to act against that?”?

Vernon Coaker: I would say to my hon. Friend’s constituent that that is why the Bill is before Parliament. Serious crime prevention orders are part of a range of measures that the Government are taking to tackle not only antisocial behaviour, but serious crime that causes much harm to my hon. Friend’s constituents, as it does to mine.
 Mr. Browne rose—

Vernon Coaker: Let me just develop the point. It is interesting and it pervades the entire debate that we are having on the Bill. There is always debate, discussion and disagreement about where the line is drawn between individual liberty and public protection. The interface between those two concepts is always a subject of tension and debate. I do not believe that there are many Committee members who do not sometimes have people coming to them to ask exactly the question that my hon. Friend set out. That question is not about the civil liberties of criminals or of people who might, under the provisions of the Bill, be the subject of serious crime preventions orders. The question is: “What about my civil liberties, and what about the fact that I see things happening in my community that I want to have tackled?”
We understand that there is a range of options. Of course, prosecution is appropriate in the majority of cases, but the Bill is about civil orders that will prevent crime. My hon. Friend’s constituents, and mine, are as concerned about their own civil liberties and human rights as about those of others.

Jeremy Browne: I understand the point that the Minister is making. However, I differ from the views of the hon. Member for Colne Valley in relation to the assumption that the state will always have benign intentions—in every circumstance, and for ever more. Is the Minister wholly and 100 per cent. satisfied that, if the British National party won an overall majority in a general election and sought to make it a serious offence, for example, for people to have sexual relations with people of different ethnicity, that party would not be aided in their attempt to introduce such a measure by what we are being asked to vote for?

Vernon Coaker: I just do not see that analogy at all.

Jeremy Browne: Why not?

Vernon Coaker: I cannot see that happening. The hon. Gentleman throws his hands up, but at the end of the day the judge in the High Court will have to act proportionately and in accordance with the Human Rights Act. In those circumstances, I cannot imagine the sort of scenario that the hon. Gentleman painted. I have more confidence in the High Court judges and the judicial process of this country than that.
The law on fraud is now set in the Fraud Act 2006. Many frauds are serious and organised, and serious criminals might also commit fraud as a way to finance their other criminal activities, which is why offences of fraud are included in the Bill. The inclusion of bribery and corruption offences demonstrates the Government’s commitment rigorously to enforce laws and sanctions against international bribery and corruption, and the schedule reflects the breadth of operation of serious criminals in this country.
It would be impossible to list every type of crime that serious criminals could commit in order to take advantage of people in the rest of society. I therefore hope that the Committee will resist the amendment and support the inclusion of the schedule.

Question put, That schedule 1, as amended, be the first schedule to the Bill:—

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Schedule 1, as amended, agreed to.

Clause 4

Involvement in serious crime: evidence

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: On a point of order, Mr. Benton. The Government wish to oppose the inclusion of clause 4 and schedule 13. For the benefit——to be honest——of myself and perhaps that of the Committee, could you advise me on the procedure?

Joe Benton: Clause 4 is now under discussion. If the Minister wishes to withdraw it, now is the appropriate time.

Vernon Coaker: It might be helpful to the Committee if I gave some opening remarks. It is the Government’s intention that clause 4 and schedule 13 be opposed.
The Government want to support the efforts of the security services and law enforcement in their fight  against terrorism and serious crime. No one on this Committee will disagree with that aim, I am sure, but whether or not it is possible to increase the effectiveness of interception, attempting to do so by extending its use to the evidential arena is difficult, not least because, as the agencies have made clear, interception is one of their most effective tools and there is a danger that its evidential use would seriously hamper the fight by undermining its use and effectiveness and seriously impact effort elsewhere.
Why do they say that? What have they to protect? Is the police view on intercept evidence not different from that of the intelligence agencies, and how is it that our agencies cannot do what every other country using interception does? Those points have been raised repeatedly in recent discussions, so I shall address some of them now.
There is no difference in view between the law enforcement and intelligence communities on intercept as evidence. Close scrutiny of what key figures have said on the subject shows that they support what the Government have been saying—the laws should be changed to allow intercept evidence if safeguards can be put in place to protect sensitive capabilities, techniques and resources, and the benefits of changing the law outweigh the risks of doing so.
The Attorney-General, whose office has been working closely with the Home Office; the Director of Public Prosecutions, who recently gave evidence before the Joint Committee on Human Rights; and the Metropolitan Police Commissioner, who is often misrepresented as an unqualified supporter of intercept as evidence, believe that safeguards are essential. Without safeguards, there can be no benefits. 
Let us consider Lord Lloyd’s proposal. Where are the additional safeguards required? The model before us has none. What have UK intercepting agencies to protect that is not dealt with perfectly adequately in the overseas jurisdictions using intercept evidence? The answer is the very thing that sets the UK apart and, I would say, ahead of overseas jurisdictions.

Jeremy Wright: Will the Minister give way?

Vernon Coaker: Let me develop this point, and then of course I will. The UK’s model is intelligence-led policing, in which intelligence agencies and law enforcement often work hand in hand. That is not replicated anywhere else. Nowhere else in the world can one find law enforcement tasking intelligence officers on interception matters. In contrast, overseas jurisdictions protect advanced intelligence capabilities from exposure in court simply by not sharing them with law enforcement. That leaves overseas law enforcement with perfectly serviceable but more basic capabilities.

Jeremy Wright: I understand the point that the Minister is making. It is welcome that the Government are at least considering introducing intercept evidence, but I ask him this. Schedule 13 provides for the admissibility of intercept and metering evidence. He says rightly that it does not include safeguards, but is there any reason why schedule 13 cannot be agreed to with a view to the Government’s developing the safeguards elsewhere and, if necessary, later?

Vernon Coaker: In answer to the point made by the hon. Gentleman, the Government want to look at all of this in the round, which is why we wish to take out both the clause and schedule 13. We want to ensure that we have a model that works and is agreed, and that the intelligence and law enforcement agencies feel it is acceptable. At the present time, we do not have that model.

Jeremy Wright: I understand the Minister’s point, but we have just been through a series of arguments in which he has said that it is necessary to have provisions in the Bill that will enable changes to be made later if circumstances change. Surely, he cannot have it both ways. In this case, we could have the schedule and provisions ready for a situation in which circumstances do change.

Vernon Coaker: We do not know whether the law enforcement or intelligence agencies are satisfied with schedule 13 or whether there are additional safeguards that they want included. Those things are not worked out by Lord Lloyd’s amendment or by the inclusion of clause 4 or schedule 13. There are still a number of unanswered questions.
I thank the hon. Gentleman for recognising that the Government want to discuss the issue and are prepared to do so. He knows that there will be a review on Privy Council terms to consider the use of intercept as evidence. The details of the review are yet to be worked out, but it will be a serious review about how to introduce something that is workable and practicable, which is better than leaving something in the Bill, about which we are not totally sure. With the best of intentions, he cannot be sure that our intelligence and law enforcement agencies are absolutely satisfied with every bit of the schedule or whether they would like to see other things included. At the present time, we think that it is appropriate to take the clause and schedule out of the Bill so that the review has a clean slate, can look at the issue in its totality and can propose something that we hope and expect to be included in a Bill in the autumn.

Douglas Hogg: Will the Minister forgive me if I build on the point that my hon. Friend the Member for Rugby and Kenilworth made? As far as I can see, schedule 13 will be commenced by a commencement order under clause 84 of the Bill. That lies within the sole discretion of the Secretary of State, so the provisions under schedule 13 will not come into force unless and until a commencement order is made, which can be done only by the Secretary of Sate.

Vernon Coaker: As I said, it may be that it can be commenced under the clause to which the right hon. and learned Gentleman referred. What he failed to mention was the point that I made to his hon. Friend: we do not know, and neither does the Committee, whether all our intelligence and law enforcement agencies are absolutely satisfied that the provisions under schedule 13 are appropriate to the model that they want. As I have said, our intention is to take out the schedule.
The strength of our system is illustrated by the creation of the Serious Organised Crime Agency last year, which combines intelligence with enforcement, and by police forces across the country that call on the security services to help with their investigations. The UK’s approach has produced outstanding results. Where is the evidence that overseas countries do better than the UK in fighting terrorism and serious crime? As Baroness Scotland mentioned recently in another place, we can point to figures that show that intercept evidence is not always used as extensively or as effectively overseas as is sometimes claimed.
What is important is what would happen in the UK if we had intercept as evidence. Would we improve on the results that we get now? The Government have said before that intercept as evidence is not a magic bullet against terrorism, which was one of the conclusions of the 2003-04 review. The prospect of improvement always needs to be taken seriously, particularly in the current climate where the stakes are raised and where there are strongly opposing views on how to go forward, as was evidenced in the House of Lords. That is why, earlier this month, the Government agreed to commission a review of intercept as evidence on Privy Council terms.
To rebut Lord Lloyd’s proposals vigorously might give the impression that we are prejudging the outcome of the new review, which would not be helpful and I certainly do not wish to do so. I do not wish to leave anyone in any doubt that Lord Lloyd’s proposals do not provide a sound basis to progress the issue of intercept as evidence. As we stated on Second Reading, we believe that they are unworkable and, indeed, defective—so much so, that it is not possible, nor, given the seriousness of the subject, appropriate, to make such amendments during the passage of the Bill. Any sensible person involved in this complex subject will recognise the need for the appropriate safeguards and to develop a workable, legal model for change. To do otherwise, as would happen if we retained Lord Lloyd’s amendment, would undermine the effectiveness of our intelligence and law enforcement agencies. That could have damaging results.

Douglas Hogg: I do not want to be pedantic, but I would like a clear understanding of what the Minister means by intercept evidence, because various classes of evidence could fall under that definition such as that intercepted by telephone, bugging and e-mails. I need to know exactly, as I think the Committee does, what class or classes of evidence will fall under that definition in the Bill.

Vernon Coaker: That is one of the very points that the review needs to debate—what we mean by intercept evidence. What sorts of intercept evidence do we believe would be appropriate in court were we to allow it? The right hon. and learned Gentleman’s point is one of the important questions for the review: whether the examples that he gave are the sorts of evidence that should be admissible in court. I think that he makes a valid point. Intercept evidence would be a huge catch-all for a range of different types of evidence. His question identifies very clearly the need for the review, because, of course, one of the questions for it would be: what counts as intercept evidence and what is admissible in court?
Changing the law on the basis of what works is the way in which to proceed, and we do not believe that Lord Lloyd’s amendment would give us that certainty. The Government have signalled their intention to proceed on a responsible basis by commissioning the review on Privy Council terms. I hope that the Committee will support that approach. I propose, therefore, that clause 4 and schedule 13 do not stand part of the Bill.

Joe Benton: Order. In accordance with the Order Paper, the two items will be presented to the Committee and voted upon.

Vernon Coaker: On a point of order, Mr. Benton, that is very helpful, but I was ensuring that I do not get that particularly important amendment wrong.

Nick Herbert: We are unhappy about the Government’s approach. On Second Reading, I made it clear that we wanted to retain Lord Lloyd’s amendment—now clause 4—until we were clear about the terms on which the Privy Councillor review of the use of intercept evidence in court was being conducted. In response to me, the Minister for Security, Counter Terrorism and Police said:
“It is my understanding that discussions between the Prime Minister and the Leader of the Opposition are continuing and that matters such as those raised by the hon. Gentleman”—
that is me—
“will be resolved, at least in outline, by the time we are in Committee. If that is not the case, I will write to the hon. Gentleman to make that clear.”
He continued:
“It is right and proper that such issues are cleared up before the Committee stage”.—[Official Report, 12 June 2007; Vol. 461, c. 681.]
I have to tell the Minister that no such undertaking has been received—to coin a phrase. However, my right hon. Friend the Leader of the Opposition, wrote to the Prime Minister on 5 June setting out his proposed terms for co-operating with the Privy Councillor review. On Second Reading, in the House, I repeated some of those terms and our proposals for the review. I said:
“The committee of Privy Councillors that looks at this issue should be a cross-party committee”—
one that is balanced. I continued:
“No one serving in Government should be on the committee”,
and that the
“committee must report well before November, in advance of First Reading of the new counter-terrorism Bill, to allow time for provisions to be incorporated in it”— [Interruption.]

Joe Benton: Order. I am sorry to interrupt the hon. Gentleman, but the noise level is getting high. Will members of the Committee please keep their voices down? We all want to hear what individual speakers have to say.

Nick Herbert: I am grateful for your support as I make this very important speech, Mr. Benton. The fourth point that we put to the Prime Minister was that, crucially,
“there must be a presumption that the Government will accept the recommendations the committee makes once it has examined all the evidence”.—[Official Report, 12 June 2007; Vol. 461,c. 680.]
In summary, we sought assurances that the review would be truly independent. I made it clear on Second Reading that we could not possibly accept the removal of Lord Lloyd’s amendment until we understood the basis on which the Privy Councillor review was proceeding. The Minister for Security, Counter Terrorism and Police appeared to understand that concern and committed to tell me what progress had been made, but that has not happened. Given those circumstances, we cannot possibly go along with the Government and accept the clause’s withdrawal.
My second concern is that the review should be truly independent and not pre-judged. The Minister knows that we are concerned about that, but his remarks about concerns regarding the use of intercept evidence did not give me great confidence that the Government have an open mind on this issue. He talked about the real dangers of the use of intercept evidence and about Britain’s unique form of policing, which I shall discuss, but I must first question the extent to which there is a consistent Government view on this matter. The incoming Prime Minister made clear his support for the use of intercept evidence in a briefing to the Sunday papers on 3 June. He also said recently that he never believed that presentation should be a substitute for policy, and that we are about to enter an age in which spin would no longer be a feature of government, and yet he made that announcement, typically, by way of a briefing to the Sunday papers and not to this House. One of the relevant articles, in The Sunday Times of3 June, said:
“Gordon Brown will this week put his personal authority behind a move to allow evidence from telephone taps to be used in court to ensure terrorist suspects do not escape the law.”
It went on:
“A source close to Brown”—
—of course, it would be a source in this new age of no spin—
“said: ‘Personally, Gordon believes the weight of argument points to using intercept evidence in court, but we want this review to build a nonpartisan consensus on the best balance between obtaining convictions of people plotting terrorist acts and preserving our sources of intelligence for the future. It is vital that the security services are closely consulted and happy with the outcome.’”

Crispin Blunt: Can my hon. Friend confirm my recollection that that briefing was given on the condition that no position on the matter could be sought from Her Majesty’s Opposition before the story hit the Sunday newspapers?

Nick Herbert: Yes, I am happy to confirm to my hon. Friend, in so far as I am aware of the position, that in this new era of no spin and of accountable and transparent government, to which we all look forward immensely, the way in which the briefing was given disallowed any of the relevant journalists from seeking an alternative view to the story that was handed to them. So much for the glorious new age that is to be ushered in tomorrow.
 Mr. Hogg rose—

Joe Benton: Order. Before Mr. Hogg intervenes, may I point out that we are dealing with clause 4. The hon. Gentleman is making very interesting observations, but will he come back to the clause?

Douglas Hogg: May I suggest to my hon. Friend that the answer to the anxiety expressed by the Minister on behalf of the intelligence and other services lies in paragraph 1(4) of schedule 13. Under that measure, intercept evidence is admissible only when the prosecution makes an application. The prosecution will, of course, reflect the wishes of the law enforcement agencies when determining whether to make such an application.

Nick Herbert: I could not agree more, and I shall speak about the various safeguards that could easily be introduced to the operation and use of intercept evidence.
That leads me to my next point. The Government complain about the absence of safeguards in Lord Lloyd’s amendment, but they could have come forward with proposed safeguards of their own. Instead, they choose to strike down the measure so that the House of Commons has no long stop on the Privy Councillor review.
Before leaving the issue of the extent to which the Government are united on the matter, the Attorney-General, who will resign in the next 24 hours or so, told the “Today” programme on 21 September last year:
“We do have a need to use intercept in court if we’re going to give ourselves the chance of convicting some of the most dangerous and prolific criminals in the country. It is a vital tool therefore for organised serious crime - this is what I’ve been told particularly by colleagues in the United States - and for terrorism.”
It would appear that there is a difference of views within the Government, so it is probably wise for them to seek a Privy Councillor review of the issue. That way, the concerns that have been expressed by the intelligence services can be addressed.
It should be noted that the intelligence services alone continue to have concerns. I have not heard that directly——it has been reported by the Prime Minister and the Home Secretary.

Vernon Coaker: The hon. Gentleman said that only the intelligence services are worried about the use of intercept evidence. Deputy Chief Constable Jon Murphy spoke on behalf of the Association of Chief Police Officers when giving evidence to the JCHR in March. He said:
“If we reduce our capacity in order to serve the evidential regime, there is a possibility...that we will lose”——
the capacity——
“to disrupt some potentially catastrophic scenarios.”
The intelligence services are not the only ones with concerns.

Nick Herbert: I am grateful for the Minister’s interesting intervention, but it is my understanding that both the Metropolitan Police Commissioner and his assistant, Andy Hayman—I shall say more about his views—who lead on the issue of terrorism, believe that intercept evidence should be considered. I accept that other individual officers have concerns and that those need to be investigated by the Privy Council committee. I am asking for the assurance, which I have been given, that that committee will go ahead on the terms requested by the Leader of the Opposition.
The Minister seemed to dispute the potential benefits of the use of intercept evidence and suggested that Britain has a kind of unique system to which we should hang on. Let us examine that claim. First, it is clear that other countries use intercept evidence successfully. If we look at cases that brought the conviction of al-Qaeda members in the United States following 9/11, mafia godfathers in New York and war criminals in The Hague, we will see that intercept evidence was used. I agree that Britain is different in this respect: we have increasingly been urged by the Government to accept measures that are more and more draconian and restrictive of civil liberties on the ground that insufficient evidence can be assembled to pursue prosecutions of terrorists.
One consequence of the failure to use intercept evidence as our peer group countries have done is that Government proposals for the indefinite detention without trial of terrorist suspects have been struck down, while the control orders that they introduced are ineffective. Those were serious incursions into civil liberties. The extension of pre-charge detention in relation to terrorist suspects was agreed by the House, but the Government now propose a further extension. All those matters demonstrate the price of the Government apparently having a closed mind on the use of intercept evidence.
The Minister says that Britain is different. It is different in one important respect: we have chosen not to use a procedure that is used everywhere else but have instead embarked upon measures that will cause a serious reduction in civil liberties. The serious crime prevention orders are very much in the same vein.
The Minister managed to find a police officer who has expressed concern about the use of intercept evidence. Perhaps he will find another. However, he will know that the Home Affairs Committee concluded that there was “universal support” for the use of intercept evidence. Indeed, the call for its use has been supported by the Chancellor of the Exchequer—tomorrow’s Prime Minister—and the Attorney-General, by the present Director of Public Prosecutions and his predecessor, by Andy Hayman, Assistant Commissioner of the Metropolitan police and the Commissioner, and by the Government’s adviser on terrorism Lord Carlile, who, with caveats, has said that it should be considered by the Joint Committee on Human Rights. An overwhelming consensus is emerging that the issue should be looked at. A case can be made for the use of intercept evidence. The question is why the Government have stood in the way of a proper review for so long.
Earlier, in response to my right hon. and learned Friend, who spoke well on the subject, I referred to the potential safeguards that could be introduced. Those safeguards operate perfectly acceptably in other countries. The use of such evidence could be authorised by a judge, as happens in the United States, and those proceedings could be heard in camera. As he said, it is highly unlikely that prosecutions would rely on intercept evidence about which the state was unhappy. However, the defence could be given the right to challenge the use of such evidence; clearance could be given for defence lawyers and judges to ensure that it was appropriate for them to make judgments about the use of such evidence; and the evidence itself could be edited or summarised. That is important, because some of the objections to the use of intercept evidence that the Government rehearsed on Second Reading—

Douglas Hogg: May I caution my hon. Friend against arguing a case to the effect that counsel instructed by the defendant may have information that he cannot communicate to the defendant? That is something that I could not support.

Nick Herbert: I understand my right hon. and learned Friend’s concern about breaching the privileged relationship that must exist. Nevertheless, the principal objection levelled against the use of intercept evidence is that its disclosure would reveal to our enemies——to those who are being surveyed——the methods being deployed in that surveillance by the intelligence services and others.
Assistant Commissioner Hayman dealt with that when he gave evidence to the Home Affairs Committee. He said that he was initially unsupportive of the use of intercept evidence, but that he had now moved. He felt that the other side were well aware of the methodologies, and he described the argument as lightweight. He went on to deal with the next objection to the use of intercept evidence. None of the objections is trivial. The next objection is that a tremendous logistical burden would be placed on the authorities if vast amounts of evidence had to be transcribed, but he said that if an investigation was focused and precise, that need not be the case.
All the issues will be examined in the committee of Privy Councillors, assuming that it goes ahead. Will the Minister tell us whether it will, and the reason for the delay? I do not know whether the delay is because of the change in regime, or because the Government are having difficulty accepting the suggestions from the Leader of the Opposition about the committee’s composition. It is important that we understand those concerns and receive the reassurance that the committee will be open-minded about the way in which it reviews the evidence.
In the circumstances, it is unreasonable to expect us to accept the withdrawal of the provision rather than its amendment, with all the safeguards that we could discuss today, before we know even whether the review is going ahead or on what basis.
 Several hon. Members rose—

Jeremy Browne: Thank you, Mr Benton, for giving me an opportunity to speak about the matter more briefly than the previous speaker.
Ever since the right hon. Member for Witney (Mr. Cameron) became leader of the Conservative party, drifting leftwards on policy, he has sought a clause IV moment. I always thought that the Conservative party’s adoption of clause IV would be that moment, and although we have not gone quite that far, we have—to some extent—got to the point where the Conservatives are adopting clause IV. We share their opinion in Committee this afternoon.
The reason why we share their opinion is that when I expressed to the Home Secretary in the House my view that it was desirable to allow intercept evidence in court, he was absolutely scathing to the point of rudeness in his dismissal of that position. The Leader of the House, the right hon. Member for Blackburn (Mr. Straw), supported him in that opinion and assertion, not orally, but with vehemently expressed body language, and although we do not know, there is speculation that the Leader of the House may become Home Secretary again tomorrow, having previously held the post. It was none the less clear to me and to other Members, some of whom are in Committee this afternoon, that the Government had dismissed out of hand the case for allowing intercept evidence.
The Government have made their case by seeking to portray members of the Liberal Democrat and Conservative parties as hopelessly irresponsible and out of touch for thinking that intercept evidence had a role to play. We were left in that position, until suddenly—low and behold—and magically, the man who will be Prime Minister tomorrow announced, as we have heard, through the Sunday newspapers thatthe position had been stood on its head. Suddenly, the Labour Government, far from being dismissive of the use of intercept evidence in court cases, were inclined towards it being used.
The situation is obviously a humiliation for the Home Secretary, but he is shortly to depart in any case. It also gives us all in Committee good reason to doubt that the Government will follow through with the consistency and focus that we might like on allowing intercept evidence subject to the considerations and recommendations of the Privy Councillors.
It is worth recalling that we are not saying that intercept evidence should be compulsory in court cases. We are not claiming, as the Minister rightly said, that it is a silver bullet. It is merely one of the tools at the disposal of those who wish to prosecute serious crimes. We share the view expressed by the Conservative Front Bench spokesman and many others beyond the House that it is legitimate and sensible to allow intercept evidence to be used. We are minded to support both the clause and the schedule on the basis that they are before us and we have no firm and consistent reason for believing that the Government are committed to going down that path were they to remove them from the Bill.

Jeremy Wright: It is a pleasure to serve under your chairmanship, Mr. Benton.
I want to speak in favour of retention of clause 4 and schedule 13, and I confess that I am still a little mystified as to the Government’s profound reluctance to accept the provisions as part of the Bill. I am grateful for, and recognise the Government’s movement, to which the Minister referred this afternoon. It is good to know that they are moving slowly in the direction of admissibility of intercept evidence, but I fear that that movement is too slow, and it seems anyway, for reasons that have been given, that there is no reason why we could not have the provisions in the Bill, and that all the necessary safeguards that the Minister believes should come could follow.
Be that as it may, I want to make several general points about why intercept evidence is so important. I agree entirely with the hon. Member for Taunton that we are not suggesting that intercept evidence is the only weapon to defeat the serious crimes that the Bill is designed to counter, but it can be one. I agree with my hon. Friend the Member for Arundel and South Downs that there are safeguards that can be put in place to provide the necessary reassurance.
I am not setting myself up as a better expert on intelligence than the intelligence officers who advise the Minister, but if they are worried that there would be a release of information about sources that would damage ongoing operations, that is similar in many ways to the concerns that the police have always had about criminal operations in which surveillance is involved where we have developed adequate safeguards that have worked well.
I should declare an interest as a criminal barrister. I am not currently practising, but when I was I came across many instances of police operations in which surveillance was carried out. Someone’s home would be used for the surveillance, but the owners of the house were not keen for those involved in the criminal activity to know where the surveillance was placed, so that information was not disclosed in open court, nor was it made available to the defence. The judge would make a decision on the ground of public interest immunity that that information should not be vouchsafed to the court or to the defence. That system has worked admirably for many years, and there is no real difference between that situation and the situation regarding intelligence that we now confront.
Indeed, the Minister properly referred a number of times to the independence and trustworthiness of the judiciary, and the reliance that can be placed on the good sense of the judges. If that is true, we can also rely on that good sense and trustworthiness when deciding what information should and should not be made available in intelligence-related cases.
It seems to me that we should have the provisions in the Bill because we should have wider availability of intercept evidence to allow us to defeat precisely the sort of criminals that the Minister set out as the target for this legislation.

Douglas Hogg: It is a pleasure to follow my hon. Friend. I entirely agree with what he says about PII applications. At the end of last week, I finished a long case in which much of the evidence was the result of bugging conversations in cars. A number of PII applications were made along the lines indicated by my hon. Friend, I think to protect the methods by which bugs were put into a vehicle, although I was for the defendant and therefore did not know. That is by the way.
The first question that one must ask is where the prima facie argument lies. It seems to me that as a matter of principle it lies in favour of admitting intercept evidence. Is it probative? Very often. Is it relevant? Very often. If it is both relevant and probative, it should in principle be admissible. Would it enable one to prosecute in cases that are not presently prosecuted? The answer is probably yes. It would be good for the point made by my hon. Friend the Member for Arundel and South Downs, in that it would enable us to move away from control orders and towards more prosecution.
What are the serious arguments against it? There are two, and here I speak with a degree of knowledge. It is old knowledge, as from 1990 to 1995 I was the Foreign Office Minister responsible for working with Government Communications Headquarters and the Secret Intelligence Service. I saw all the intelligence product coming to the Foreign Secretary’s desk and my own and was familiar with the methods and targets adopted by the Foreign Office and the intelligence services.
It seems to me that two issues of technique need to be addressed. The first is targets. It is obviously thoroughly undesirable that prospective or actual targets know that they are they are the targets of intercepted communications. I accept that. Secondly there is a point that is somewhat less strong now: the method used. When I was in the Foreign Office, methods were unquestionably used that were not generally known. I suspect that they are now. So there are serious questions to be considered on both targeting and methodology.
Another, different matter is the copying of material for ultimate disclosure to defendants. The prosecution is under a duty to disclose to the defendant any material that might undermine the prosecution’s case or reinforce the defence’s. It will be argued that the intelligence services are therefore under the duty to copy and make available bodies of the intercept evidence that they are accumulating for a trial. The question is whether those arguments, which are real and not derisory, should stand in the way of the admission of intercept evidence. In my view they should manifestly not.
The Bill itself provides the answer, although there may be other answers. As I said in my intervention on my hon. Friend the Member for Rugby and Kenilworth, paragraph 4(1) of schedule 13 makes it plain that intercept evidence will be admitted only on the application of the prosecution. For that purpose the prosecution is largely the spokesman of the intelligence services. If for one reason or another the intelligence services do not want the intercept evidence to be communicated, either because it reveals methodology or targets or because it involves too much transcribing input, a prosecution will not take place. The prosecution counsel will not make the application. That is the safeguard.
In some cases the prosecution will go ahead because the intelligence services are not concerned. If they are concerned, there will not a prosecution. That is probably a sufficient safeguard.

Jeremy Wright: My right hon. and learned Friend will know well that in a PII application, if the judge were to determine that information should be disclosed to the defendants, and if the prosecution, presumably in consultation with intelligence authorities, were to determine that that price was simply too high, they could always discontinue the prosecution at that point.

Douglas Hogg: That is entirely right, and it does in fact happen. It reinforces the point that the safeguard that is already in the Bill will protect the interests of the security services on both methodology and targeting and the cost and burden of transcribing.
I hope that we will keep the provision in the Bill. I accept that it may require further discussion with the intelligence services to provide reassurance. However, we should be moving towards the admissibility of intercept evidence in principle. However, we should be moving towards the admissibility of intercept evidence in principle.

Geoffrey Cox: It is a pleasure to serve under you, Mr. Benton. I want to make only two or three short points.
I am also uncertain about why the Government are behaving so much like a bashful maiden about this category of evidence. I understand to some extent that the Minister wants to ensure that the provisions are brought in a way that perfectly satisfies the concerns of people who frequently have to risk their lives in circumstances of great danger, and I quite understand their concern that any legislation should be thoroughly researched and have a proper basis.
However, I am still troubled by some of what the Minister said. I was considerably puzzled by his statement that nowhere in the world other than the United Kingdom did the police and intelligence agencies work together on the interception of communications. If that is his information, it is wrong. 
I have experience of several such jurisdictions; I have been advising a particular Government, not all that distant from here, in whose jurisdiction precisely that is taking place—the police and judicial authorities are working extremely closely with the intelligence agencies, specifically on the eavesdropping of communications in respect of some very serious criminals indeed. I invite those who brief the Minister to look again at the issue. If they would like a word with me, I can tell them where I am talking about and about the practices adopted elsewhere.
I, too, want to mention Lord Lloyd’s amendment. A good deal of injustice is being done by the Minister in characterising what we have been discussing as unsatisfactory and unsafe. With respect, it seems to me that the amendment has been drafted with the elegance of design that one would expect of the noble Lord. For the precise reasons mentioned by my right hon. and learned Friend, and for another reason that he may not yet have perceived—he certainly did not mention it a moment ago—all the safeguards that any intelligence agency or police authority could reasonably wish for are contained, in one bold stroke, in the amendment.
Not only does clause 1(4) do precisely what my right hon. and learned Friend has said—that is, apply the provisions of section 17 of the Regulation of Investigatory Powers Act 2000 until an application is made by the Crown. It also goes much further. In effect, it enables the Crown to choose whether to make the application, in which case, as my right hon. and learned Friend said, it would need the approval of the intelligence services, which would have carried outthe eavesdropping. Furthermore, clause 1(4) enables the prosecution to tailor and fashion its application by submitting it on the terms in respect of which it wishes to have the intercept evidence admitted. Paragraph 2 to schedule 13, “Considerations for allowing intercept or metering evidence”, makes it plain that in
“deciding whether to admit intercept or metering evidence, the court shall take account of all relevant considerations...in particular...any application by the Secretary of State to withhold the evidence or part of the evidence on the ground that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest”.
I can envisage what Lord Lloyd had in mind, and what the inevitable interpretation of the provision would be in the courts. A prosecutor would, with the approval of the intelligence agency, put before the court the terms of the evidence that he wished to be admitted. Such terms would no doubt omit a whole range of transcripts of other eavesdropped conversations. They might well omit the circumstances in which the evidence had been obtained. They would make clear to the judge the basis on which the Crown sought to have it admitted. If the judge said, “Well, no, unless you give details of this particular means of interception”, then the prosecution would withdraw the application.

Douglas Hogg: I put it to my hon. and learned Friend that subsection (2) is double-locked because what it provides in its cumulative whole is first, the decision of the prosecuting authority. But it gives the Secretary of State the right to intervene if he or she feels that the prosecuting authority has made an error.

Geoffrey Cox: Yes, it certainly does that. But what I am concentrating upon is that what this section appears to envisage is that if one were prosecuting this, one could put a statement before the court, edited and shorn of all details of how the interception had been carried out, of all details relating to other conversations or names, put it before the judge and say, “Will you allow that to be admitted into evidence?”. Of course, the defence would be able to make submissions based on that.If the judge said no, they could withdraw their application.
It seems to me that that is not only reasonable but that it contains all the safeguards that could be needed. The Crown and the intelligence agency can decide whether to make an application, the terms on which that application should be made, the nature of what should be revealed or disclosed and then, if the judge decides that he will not admit it on that basis, they can simply withdraw it.
Those safeguards seem to provide almost everything it is conceivable that could be wanted. It may be that only in one case a year would one would make an application and it would be made on confined terms, which would give little away other than the fact that they have been eavesdropped. If the judge was willing to allow that evidence in, and he might very well, then why not use it in those circumstances? What possible apprehension could there be, provided one was willing to allow the fact that one had eavesdropped to have been disclosed in the first place? Of course, the whole of this argument presupposes that that disclosure is made.
In my submission to the Minister, he needs to look again at Lord Lloyd’s provision. It has been elegantly designed—as one would expect of the noble Lord, with his enormous amount of experience—and it needs to be carefully considered. Having said that, the provisions stand perhaps uncomfortably in this Bill. I am puzzled by an oddity of drafting which, under clause 4 apparently gives effect for the purposes of this Bill to schedule 13. It effectively says that the conditions of admissibility when the High Court is considering a serious crime prevention order shouldbe those set out in schedule 13. But scheduleparagraph 1(4) of schedule 13 seems to confine admissibility only to a criminal prosecution.
I have some unease. It may be that further discussion with the distinguished author of the clause would settle my mind, but at the moment I am not convinced that it stands in the right place in the Bill. But as a provision of schedule 13 for admitting intercept communication evidence, I submit to the Minister that this clause has some elegant advantages. I would be grateful if he enlightened me as to where the risks lie in that legislative proposal, if the prosecution can choose when and on what terms to make an application and further, if the judge declines to admit it on those terms they can then withdraw it.

Crispin Blunt: This an extremely important debate, not least because of the environment within which it happens. It is important for the Government’s role to be serious. They should not, in any sense, be seen to be playing games, but to be addressing the issue.
Parliament has been driven in the direction of legislation such as control orders, and a 28-day period of detention; the Government invited Parliament, happily unsuccessfully, to agree to a 90-day detention order. We have been trying to tell the Government that if they bring forward measures which, by any standard, are repressive and strong, to deal with terrorism they run the very serious risk of making the position worse. The laws being put in place make it easier for terrorists to recruit people to operate against the United Kingdom.
This is an extremely serious issue. Anyone who has read an account of the run-up to 9/11 in the United States will know that the CIA and the FBI had a very different approach to this kind of evidence. The CIA saw it as intelligence; the FBI tended to want it to be of evidential quality that they could produce in court. There was a serious difference in operations between the two agencies and they failed to co-operate adequately with each other. Had they co-operated properly with each other, it is likely that the passage of information between them would have led to the earlier detection and arrest of the 9/11 bombers, and that appalling tragedy might have been averted.
The Minister referred earlier to the United Kingdom’s enormous advantage in having a system in which the agencies co-operate with each other. There will not be a divergence between the different agencies who are tasked with getting information and those who have to produce it as evidence in court. However, the danger in our approach is that the agencies dictate the agenda.
Parliament and the Government should be the arbiters of the overall public interest but in order to address the terrorists directly, because we have not confronted the issue we are being driven to impose serious, regressive legislation in order to go after the terrorist threat. By doing so, ironically, we run the risk of making that threat worse, because the legislation acts as a recruiting sergeant for the terrorists.
The issue has been around for a long time. The incoming Prime Minister presented it in a briefing to which journalists were not invited, or were told that if they took the briefing, they could not seek a comment from the official Opposition. It is unfortunate that the Government still seem to be trying to present Opposition parties as soft on terrorism. The Government should bear it in mind that the provision suggested by their lordships acts as a long-stop in the review process on which they are about to embark.
People would get the wrong message if the Government were to extract the clause from the Bill. From now on, they should avoid the presentation issues and deal with the real issue of co-operation between the agencies, which includes Parliament and Government. We must all try together to get the right powers to take on the terrorists effectively without handing them the tool of repressive legislation that will simply help them to do their work.

Vernon Coaker: I thank all hon. Members who have contributed to debate and discussion of this part of the Bill for their comments. The hon. Member for Reigate makes the point that this is an extremely important issue that all of us want to see resolved, and I think that we all agree. He stressed the importance of the issue and the need to present it to the public in the most appropriate way. I thank him for his comment.
I apologise to the hon. Member for Arundel and South Downs if the Government have made a commitment to do something and have not done it. I will check that and reply to him. I can only apologise if it is the case. We will check the commitment, see what has not been done and try as far as possible, although we cannot rewind the clock, to see what we can do.
I shall make a couple of remarks. The hon. Gentleman raised all sorts of issues, as did his hon. Friend the Member for Rugby and Kenilworth and other Members. The Government are absolutely committed to a review of the use of intercept. We are also committed to using intercept as evidence if we can find a workable model and the necessary safeguards can be put in place. That is the Government’s position. It is clear, and there is no rowing back from it. As the Prime Minister-designate and others have said, we will pursue that review on Privy Councillors’ terms.
I cannot say what form the review will take, what the membership will be or any of the other things that have yet to be resolved—as I understand it, those discussions are still going on—but I make in this Committee the commitment, to be recorded in Hansard, that that review will take place. We expect and hope that it will not take too long. If the review concludes that the use of intercept evidence is appropriate, a working model can be identified and the necessary safeguards can be put in place, it might be possible to include it in a counter-terrorism Bill in the autumn. Those commitments have been made. That is what we have said, and that is what we are trying to achieve. We cannot guarantee that it will happen, but that is how we propose to take the matter forward.
I shall share a couple of points with the Committee to identify the difficulty. To be fair, the hon. and learned Member for Torridge and West Devon, as well as his right hon. and learned Friend the Member for Sleaford and North Hykeham, raised issues about the drafting of clause 4 and schedule 13 that will need to be overcome. Many hon. Members’ questions involve the very issues that need to be resolved if we are to find a workable model built on consensus that allows us to use intercept as evidence. That will include Parliament, as the hon. Member for Reigate said; it will include law enforcement, the intelligence services and everyone else involved, but issues still remain to be resolved. We would be deluding ourselves as a Committee if we did not appreciate that.
The hon. Member for Arundel and South Downs said—I know that he did not mean it—“a police officer said”. It was not a police officer. I shall repeat it, because it is very important. It was not a police officer; it was a deputy chief constable speaking on behalf of the Association of Chief Police Officers in evidence to the Joint Committee on Human Rights. Not 10 years ago but a couple of months ago, in March 2007, he said:
“If we reduce our capacity in order to serve the evidential regime, there is a possibility...that we will lose that capability to disrupt some potentially catastrophic scenarios.”
If the Government were to ignore that and say, “We will proceed irrespective of what one of the most senior police officers has told us”, I do not think that the Committee would be saying, “Why are you not using this intercept as evidence?” If, as a consequence of doing that, some catastrophic event was not prevented, which could have been prevented, Parliament and hon. Members on both sides would rightly ask, “Why did you not take any notice of what the senior officer said?”

Geoffrey Cox: The Minister is not dealing here with a provision that would allow the interception of communication evidence to be admissible in every burglary, theft, shoplifting or even drug dealing case, but with a specific provision—it might apply only to three or even one case a year—that would allow the prosecution to choose its own territory and to say, “This case is so important, and it is so important that we bring a conviction, that we will bring this  application and choose to put to the judge the way in which we propose to adduce the evidence, and ask him to approve it. And if he won’t, we won’t do it.” Now what on earth is wrong with that?

Vernon Coaker: The Government are searching for such a model that will allow that to happen, so that we do not have senior police officers telling us that the consequences of taking forward a model that they do not believe has the necessary safeguards in it could be catastrophic. We often quote senior people such asthe Information Commissioner. Now let me read another quote, this time from the interception of communications commissioner—another senior figure. He said, again, not 10 years ago, but in his last published annual report in February 2007,
“in my judgment, the introduction of intercept material in the criminal process in this country...would put at risk the effectiveness of the agencies on whom we rely in the fight against terrorists and serious criminals, might well result in less convictions and more acquittals and, most important of all, the ability of the intelligence and law enforcement agencies to detect and disrupt terrorism and serious crime and so protect the public of the country would be severely handicapped”.

Douglas Hogg: Will the Minister not recognise that the two statements that he has read out were made by people addressing the issue at large, not in the context of the Bill? My hon. and learned Friend the Member for Torridge and West Devon made it plain that the provisions in the Bill provide precisely the kind of protection that the two gentlemen quoted by the Minister were seeking.

Vernon Coaker: With respect to the right hon. and learned Gentleman, the point that I am trying to make is that senior figures in the police, interception world and intelligence services have serious concerns about the use of intercept as evidence and the way in which it has been included in the Bill. The Government have said that, notwithstanding those concerns and objections, if we can find a workable model and a way in which to ensure the necessary safeguards, we will look to introduce into the counter-terrorism Bill in the autumn the necessary legal changes so that we can use intercept as evidence.

Nick Herbert: I do not think that any of us have tried to do anything other than concede that there are concerns in the intelligence services about the use of intercept. In fact, I said that specifically. That is why surely it makes sense to examine those matters properly.
I do not think that the Minister should be allowed to get away with the suggestion that there is some sort of universal expression of concern among the police. I do not dismiss the concerns of the officer who warned about the impact on capacity, but the fact is that the Metropolitan Police Commissioner, who is the most senior police officer in the country, and his assistant, who is tasked with tackling terrorism, have both made it clear that they favour the use of intercept evidence and want the issue to be considered.

Vernon Coaker: My understanding is that the Metropolitan Police Commissioner’s view is exactly the same as the Government’s; that is, that intercept evidence is perfectly acceptable, provided we can find  the necessary safeguards and put together a workable legal model. As I said, that is the intention of the review. That is how we want to go forward, and I believe that it is a sensible way of proceeding.
The hon. Member for Arundel and South Downs referred to resource implications. I raise with him the example that Sir Swinton Thomas, the interception of communications commissioner, gave in his last annual report. It illustrates the problem of an increased resource burden on the interception agencies. He quoted a recent case in which a trial judge orderedthe prosecution to transcribe some 16,000 hours of eavesdropping material at a cost of just under £2 million.
Indeed, when I visited the Serious Organised Crime Agency to see some of its capability and capacity, one of the concerns that was raised with me was the use of intercept as evidence. Apart from the philosophical debate that may take place, there are practicalities to be considered. If a piece of intercept evidence has to be of an evidential standard instead of just something to be used to inform some law enforcement activity, the transcribing of huge amounts of data is required rather than just the securing of a particular place. The only point that was made to me was that, notwithstanding the philosophical points and points of principle that need to be made about the use of intercept evidence, there are practical consequences for the agencies as well.

Geoffrey Cox: Does the Minister not understand that the provision circumvents that problem? It allows the prosecution to go to the judge with a certain amount of information, but a certain amount of information only, and ask him to admit it on that basis. If the judge says no, the prosecution withdraws. It can say to the judge, “We want to introduce evidence that is particularly devastating and compelling. This is the conversation and context in which it took place, but we will give no further details. If you will not admit it on that basis, we shall withdraw the application.” The judge can say yes or no.
There is no risk that a judge will order massive disclosure to the defence of hundreds of conversations tape-recorded over many hours—much of the material would be unused—because the prosecution will be able to get a ruling from the judge beforehand as to what he will and will not permit. That is what the provision means. That is how I would interpret it, and I have spent 25 years practising in the courts at a level that would involve precisely such applications. I cannot see the problem.

Vernon Coaker: I gave an example from the commissioner’s last report of a judge who said that it was necessary to transcribe 16,000 hours of eavesdropping material. Concerns are being raised by the agencies that are responsible for law enforcement, for tackling serious crime and for running our intelligence services.
In conclusion, it is not a matter of shutting down the debate or closing our minds to the use of intercept as evidence. We have made a serious commitment to the review. I note again the point made by the hon. Member for Reigate, but we will take the review forward and we would be foolish to proceed by  ignoring what the intelligence services, senior police officers and the Serious Organised Crime Agency tell us. We want to find a workable model and a way in which intercept evidence can be used, provided that the necessary safeguards are in place, and we want to find a way forward that is built on consensus and has the confidence of those whom we employ to protect our country.

Nick Herbert: Before the Minister concludes, I accept his apology for the failure to deliver what the Minister for Security, Counter Terrorism and Police promised on Second Reading—that we would be updated as to the progress of the Privy Councillor committee before we came to consider this matter. I am grateful for the Minister’s apology, but we still have not received that explanation and we have no idea of the basis on which the committee is going forward. Does the Minister understand that we cannot therefore simply accept the withdrawal of the clause? As he has apologised, would not it be proper to—

Joe Benton: Order. This is becoming a contribution.

Nick Herbert: May I simply finish my point, Mr. Benton?

Joe Benton: Yes.

Nick Herbert: As the Minister has apologised, would it not be proper to return to this matter on Report after those undertakings have been fulfilled as was promised to the official Opposition?

Vernon Coaker: I do not think that would be appropriate. I have apologised to the hon. Gentleman regarding any commitment that has not been met and I have tried to reassure him and the Committee that the Government are undertaking a review, the exact composition and terms of reference of which are, I understand, the subject of discussions between the Leader of the Opposition and the Prime Minister. I expect those discussions to continue and I hope that they will reach a satisfactory conclusion from which the review can proceed. If a way can be found that takes into account the concerns of the intelligence and law enforcement agencies, we might be able to introduce the use of intercept evidence in the not-too-distant future.

Question put, that the clause stand part of the Bill:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Clause 4 disagreed to.

Schedule 13

Intercept evidence

Motion made, and Question put, That this schedule be the Thirteenth schedule to the Bill:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Schedule 13 disagreed to.
 Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at five minutes past Seven o’clock till Thursday 28 June at Nine o’clock.